1. The author of the communication (initial
submission dated 15 February 1990 and subsequent submissions)is P. S., a
Danish citizen born in 1960. He submits the communication on his own behalf
and that of his son, T. S., born in January 1984. The author claims that he
and his son are victims of violations by Denmark of articles 14, paragraphs
2 and 3 (c), 17, 18, 21, 22, 23, 24, 26 #and 27 of the International
Covenant on Civil and Political Rights.

The facts as submitted by the author:

2.1 The author married in 1983. In 1986, he and his wife were separated by
decision of the County Authorities of North Jutland, which also decided on
joint custody of the son. In 1988 the Municipal Court of Varde pronounced
the divorce and awarded custody to the mother. The author appealed to the
Court of Appeal and claimed custody of his son. On 10 May 1988, the Court of
Appeal confirmed the Municipal Court's judgment in respect of the custody
question.

2.2 During the proceedings, a temporary agreement on the right of access was
concluded between the author and his ex-wife; yet, after discovering that
the author had converted to the faith of 'Jehovah's Witnesses, and that he
had taken his son to a rally of Jehovah's Witnesses, the mother requested
the County Authorities in Odense to decide on her conditions for granting
access to T-S., under which the author had to refrain from teaching the
faith of Jehovah's Witnesses to his son. In this context, it is noted that
under Danish law, the parent who has custody may decide on the child's
religious education.

2.3 On 13 October 1988, a meeting was arranged between the author and his
ex-wife; expert advice on child and family matters was given to both parties,
in accordance with relevant Danish legislation. Despite this advice, the
author refused to refrain from teaching his son the tenets of his religion.
He also rejected the mother's suggestion to limit the right of access to
visits at the address of the son's paternal grandmother. By letters of 30
November and 11 December 1988, the author requested the County Authorities
of Funen to settle the dispute.

2.4 By decision of 13 December 1988, the County Authorities of Funen
determined the extent of time father and son were entitled to spend together,
and the conditions under which such visits might take place. In this
connection, the County Authorities stated: "Access to T. is granted on
condition that T., while visiting his father, is not taught the faith of
Jehovah's Witnesses and that T. does not participate in Jehovah's Witnesses'
rallies, gatherings, meetings, missions or similar activities". Under Danish
law, it is possible to stipulate exact conditions for the exercise of
visiting rights, but only if such conditions are deemed necessary for the
well-being of the child. In this case, the authorities found that the child
was facing a "loyalty crisis" vis-a-vis his parents, and that if no
limitations were imposed on the religious influence he was exposed to during
his contacts with the father, his normal development might be jeopardized.

2.5 On 17 December 1988, the author appealed to the Directorate of Family
Affairs, arguing that the decision of the County Authorities constituted
unlawful persecution on religious grounds.

2.6 By letter of 7 January 1989, the author notified the County. Authorities
that his ex-wife refused to comply with the access arrangements determined
by the authorities. To enforce his right of access, he requested the
Sheriff's Court (Foaedretten) of Odense to issue an access order. By
decision of 3 February 1989, the Court decided to stay the proceedings on
the ground that the author was in no position to make a clear and explicit
declaration that he would fully comply with the conditions imposed on his
right of access, and that the matter was still pending before the
Directorate of Family Affairs.

2.7 By interlocutory judgment of 29 June 1989, the Court of Appeal dismissed
the author's appeal against the decision of the Sheriff's Court of 3
February 1989, on the ground that the statute of limitations had expired. By
the same judgment, the Court of Appeal dismissed another (interlocutory)
appeal of the author, which had been directed against a decision on access
of the Sheriff's Court of 19 May 1989. The Court of Appeal contended that
the claims could not be put forward under the procedure used by the author.

2.8 On 19 March 1989, the author informed the Danish Minister of Justice of
his case. By decision of 30 March 1989, the Directorate of Family Affairs
upheld the County Authorities' decision of 13 December 1988 on the right of
access. The author then filed a complaint with the Parliamentary Ombudsman.

2.9 On 27 June 1989, the Sheriff's Court of Odense issued yet another order
concerning the enforcement of the author's right of access, It argued that,
according to the statements of the mother, the author had disregarded the
conditions pertaining to the exercise of his right of access during one of
T-S. 'visits. The Court again suspended the proceedings on the ground that
the question of validity of said conditions was still under review by the
Court of Appeal.

2.10 In his reply of 1 November 1989 to the author, the Ombudsman
acknowledged that the parents 'freedom of religion must be taken into
consideration, but that this did not exclude consideration of exceptional
circumstances, especially where the best interests of the child are
concerned, in which case limitations on the exercise of religious freedom
could be imposed during contacts with the child. The Ombudsman reiterated
that, in the present case, the conditions imposed on the author's right of
access should be deemed to be in the best interest of the son. On the other
hand, he conceded that the author's freedom of religion must also be taken
into consideration, in the sense that only "strictly necessary conditions"
could be imposed in this respect. The Ombudsman noticed that the authorities
had not found any reason to deny the author contact with the son on account
of his being a Jehovah's Witness, even though it was known that the daily
life of Jehovah's Witnesses is strongly influenced by their beliefs.
Accordingly, the Ombudsman requested the authorities to define exactly the
circumstances under which the son's visits might take place.

2.11 On 28 February 1990, after consultations with the author and the
mother, the County Authorities formulated the following conditions: "The
right of access shall continue only on condition that the son, during visits
to his father, will not be taught the faith of Jehovah's Witnesses. This
means that the father will agree not to bring up the subject of Jehovah's
Witnesses faith in the company of the child, nor start conversations about
this subject. Moreover, the father will agree not to play tapes, show films
or read literature about the faith of Jehovah's Witnesses, nor to read the
bible or say prayers in conformity with this faith in the presence of the
child. Another condition of the continued right of access is that the son
will not participate in Jehovah's Witnesses' rallies, gatherings, meetings,
missions or similar activities. The expression 'or similar activities' means
that the son will not be allowed to participate in any other social
gatherings . . . where texts from the bible are read aloud or interpreted,
where prayers are said in conformity with the faith of Jehovah's Witnesses
or where literature, films or tapes are presented about the faith of
Jehovah's Witnesses".

2.12 On 1 March 1990, the author appealed to the Department of Private Law
(the former Directorate of Family Affairs), arguing that he and his son were
experiencing continuous persecution and that his rights to freedom of
religion and thought had been violated. He submitted another complaint to
the Parliamentary Ombudsman against the decision of the County Authorities.
By decision of 10 May 1990, the Department of Private Law upheld the County
Authorities 'decision of 13 December 1988, as defined on 28 February 1990.
It stated, inter alia, that the conditions imposed on the author's right of
access were not excessive having regard to his freedom of religion.

2.13 Further submissions from the author reveal that he has continued to
petition the authorities. At present, his right to access can only be
exercised under supervision, as he has been unwilling to comply with the
conditions imposed on him.

The complaint:

3. The author claims violations of:

(a) Article 14, paragraph 2, because his visiting rights allegedly were
refused on the mere suspicion that he might do something wrong in the
future;
(b) Article 14, paragraph 3 (c), as the dispute dates back to August 1986
and has not been settled by the authorities five and a half years later;
(c) Article 17, as the conditions imposed on him by administrative and
judicial decisions constitute an unlawful interference with his privacy and
family life. On account of said decisions he claims to have been subjected
to unlawful attacks on his honour and reputation;
(d) Article 18, because if the authorities had respected its provisions,
there would have been no case in the first place;
(e) Articles 21 and 22, as the restrictions to which he and his son are
subjected entail violations of the exercise of their rights of peaceful
assembly and freedom of association;
(f) Article 23; at no time did the Danish authorities try to protect the
family unit;
(g) Article 24, in respect of his son;
(h) Article 26, which is said to follow from the violations of articles 14,
paragraphs 2 and 3(c), 18, 21 and 22;
(i) Article 27, which is said to follow from the violation of article 18.

The State party's observations and the author's comments thereon:

4.1 The State party explains the operation of Danish legislation governing
separation of spouses, divorce, custody and access to children, and of the
relevant administrative and judicial authorities. It adds preliminary
comments on the author's grievances.

4.2 The State party notes that custody of the son was awarded to the mother,
in compliance with Danish legislation and court practice. Accordingly, she
has the exclusive right to decide on the son's personal affairs and to act
on his behalf. The State party claims that the communication should be
declared inadmissible ratione personae in respect of T. S., on the ground
that the author has no standing under Danish law, to act on behalf of his
son without the consent of the custodial parent.

4.3 The State party claims that the author has failed to exhaust available
domestic remedies. It notes that on 10 May 1990, the Department of Private
Law rendered its final decision in respect of the conditions imposed on the
author's right of access: with this, only the available administrative
procedures were exhausted. Pursuant to section 63 of the Danish
Constitutional Act, the author should then have requested from the courts a
judicial review of the terms and conditions imposed by the decision.

4.4 The State party also observes that the courts may directly rule on the
alleged violations of Denmark's international obligations under the
International Covenant on Civil and Political Rights. It concludes that, as
the author failed to submit his complaint to the Danish courts, the
communication is inadmissible under articles 2 and 5, paragraph 2(b), of the
Optional Protocol.

4.5 In his comments on the State party's submission, the author states,
inter alia, that he does not want to seize the courts because of the
unnecessary expenditure of taxpayers, money and for reasons of time and
stress. He also expresses his doubts about the effectiveness of a trial in
his case.

Issues and proceedings before the Committee:

5.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.

5.2 The Committee has taken notice of the State party's contention that the
author has no standing to act on behalf of his son, as . Danish law limits
this right to the, custodial parent. The Committee observes that standing
under the Optional Protocol may be determined independently of national
regulations and legislation governing an individual's standing before a
domestic court of law. In the present case, it is clear that T. S. cannot
himself submit a complaint to the Committee; the relationship between father
and son and the nature of the allegations must be deemed sufficient to
justify representation of T. S. before the Committee by his father.

5.3 As regards the author's claims of a violation of articles 14, 21, 22 and
27, the Committee considers that the facts as submitted by the author do not
raise issues under these articles. This part of the communication is
therefore inadmissible under article 2 of the Optional Protocol.

5.4 With regard to the author's allegations of violations of articles 17,
18, 23, 24 and 26, the Committee observes that article paragraph 2 (b), of
the Optional Protocol precludes it from considering a communication unless
it has been ascertained that domestic remedies have been exhausted. In this
connection the Committee notes that the author has only exhausted
administrative procedures: it reiterates that article 5, paragraph 2 (b), of
the Optional Protocol, by referring to "all available domestic remedies if,
clearly refers in the first place to judicial remedies. ' The Committee
recalls the State party's contention that judicial review of administrative
regulations and decisions, pursuant to section 63 of the Danish
Constitutional Act, would be an effective remedy available to the author.
The Committee notes that the author has refused to avail himself of these
remedies, because of considerations of principle and in view of the costs
involved. The Committee finds, however, that financial considerations and
doubts about the effectiveness of domestic remedies do not absolve the
author from exhausting them. Accordingly, the author has failed to meet the
requirements of article 5, paragraph 2(b), in this respect.

6. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under articles 2 and 5, paragraph
2(b), of the Optional Protocol;
(b) That this decision shall be communicated to the State party and to the
author.